Wright v. State

Decision Date01 January 1874
Citation41 Tex. 246
PartiesRILEY WRIGHT v. THE STATE.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Newton. Tried below before the Hon. H. C. Pedigo.

It appeared from the testimony that on July 21, 1870, the deceased, Robinson, had a fight with one Simeon Gray, in which Gray was mortally wounded. Robinson fled to his house, where the sheriff of the county was boarding, and surrendered to the sheriff, claiming his protection. Robinson would have left town that night, but was prevented by the sheriff, who assured him of protection. About two hours after night, defendant with several others came to the house. Defendant abusing deceased, the sheriff told deceased to run. Obeying the sheriff, Robinson tried to escape, but was fired on by defendant and instantly killed. The sheriff fled, and in his flight fired a gun, probably taking effect on the defendant, seriously wounding him. The party had gone to Robinson's with an informal warrant issued by a justice on the statement of Simeon Gray for the arrest of Robinson upon the charge of assault with intent to murder. S. H. Mathews, sr., had the warrant, and summoned the defendant and three others.

There was some conflict of evidence as to whose shot killed Robinson; and there was evidence showing that defendant's first shot was in the air, and to frighten deceased.

The defendant offered to prove the dying declarations of Seborn Gray, to the effect that Robinson had inflicted the wounds of which he (Seborn Gray) was about to die. This testimony was excluded.

The charge of the court objected to is sufficiently noticed in the opinion of the court.

Defendant was convicted, and his punishment fixed at twenty years in the penitentiary.

Miller & Dowell and H. G. Starke, for appellant.

George Clark, Attorney General, for the State.

GOULD, ASSOCIATE JUSTICE.

The appellant was tried at the August term, 1873, of the District Court of Newton county, on an indictment for the murder of George W. Robinson, alleged to have been committed on July 20, 1870. He was found guilty of murder in the second degree, and his punishment fixed at twenty years in the penitentiary.

The exclusion by the court of the dying declarations of one Simeon Gray was excepted to at the time, and is now urged as erroneous. Counsel for appellant have referred us to no authority for the admission of such declarations, except in cases of homicide, where the death of deceased is the subject of the charge. (1 Greenl. Ev., § 156; 1 Whart. Cr. Law, sec. 675; Stark. on Ev., 32.) The evidence was correctly excluded.

The admission of evidence of the conduct and language of the prisoner, some weeks previous to the killing, tending to show ill feeling and evil designs on his part toward deceased, is also urged as error. There is no bill of exception, showing that this evidence was objected to at the time it was admitted. But if the objection had been made at the time, we do not think it should have been sustained. Former menaces or grudges are admissible, not as matters of aggravation, but as facts, from which the state of mind at the time of the killing may be inferred. (1 Whart. Cr. Law, secs. 635-639; McCoy v. The State, 25 Tex., 41.)

We see no evidence in the record...

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7 cases
  • Christian v. State
    • United States
    • Texas Court of Criminal Appeals
    • November 5, 1913
    ...require a reversal whether such error was calculated to injure or not. Even before this article was amended, the Supreme Court in Wright v. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant; and cases prior......
  • Terrell v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 10, 1915
    ...Cr. R. 298 [22 S. W. 1094]. A judgment of conviction will not be reversed for improper instructions given in favor of defendant. Wright v. State, 41 Tex. 246. On a trial for murder, where the evidence establishes murder in the first degree, defendant cannot be heard to complain that the cou......
  • Coker v. State
    • United States
    • Texas Court of Criminal Appeals
    • October 15, 1913
    ...require a reversal whether such error was calculated to injure or not. Even before this article was amended, the Supreme Court in Wright v. State, 41 Tex. 246, held that a judgment of conviction would not be reversed for improper instructions given in favor of the defendant; and cases prior......
  • Haley v. State
    • United States
    • Arkansas Supreme Court
    • June 5, 1911
  • Request a trial to view additional results

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